1) A "LAV SHEBI'CHELALOS"
QUESTION: The Gemara discusses various principles mentioned earlier in the Masechta, such as "Ein Onshin Min ha'Din" and "Ein Mazhirin Min ha'Din." The Gemara asks that the Mishnah here (17a) seems to contradict the rule of "Ein Onshin Min ha'Din." The Mishnah states that a Kohen who eats the fruits of Bikurim before the owner has read the Parshah of Bikurim, or one who eats Kodshei Kodashim outside of the confines of the Beis ha'Mikdash, is punished with Malkus. This punishment, however, is not written explicitly in the Torah but is derived through a Kal va'Chomer!
The Gemara answers that the primary source for Malkus in these cases is not a Kal va'Chomer, but rather an apparently extra verse in the Torah. The Torah commands, "The place that Hash-m your G-d will choose to rest His name, there you shall bring... your Olah offerings..., your tithes..., and all of your choicest pledges that you will pledge to Hash-m" (Devarim 12:11)." This verse lists the things that must be brought to Yerushalayim. The Torah then prohibits eating these things outside of Yerushalayim and says, "You may not eat in your settlements the tithe of your grain and of your wine and of your oil, the firstborn of your cows and your sheep, all of your pledges [to Hekdesh] that you will pledge, and your free-will offerings and what you separate as Terumah with your hands" (Devarim 12:17). Why does the Torah repeat the list of objects in the second verse? It could have said merely, "You may not eat in your settlements all of these things." Through this repetition, the Torah teaches a Lav (and thus a punishment of Malkus) for each of these prohibitions.
However, this answer is problematic in light of another rule. When the Torah places together a number of actions and includes them all under one expression of prohibition, none of the actions are subject to a punishment of Malkus. This type of prohibition is called a "Lav shebi'Chelalos." A "Lav shebi'Chelalos" is a single Lav that prohibits many different acts. Since the Torah states one expression of prohibition in the verse (12:17) for all of the items, it should be considered a "Lav shebi'Chelalos" for which Malkus is not given!
ANSWER: RASHI answers that the Torah here does not mention one item which includes all of the others. Each item is listed separately and cannot refer to any other item. Therefore, when the Torah mentions the prohibition ("you may not eat"), it is as though the prohibition is written with regard to each item separately. This is not a "Lav shebi'Chelalos." A "Lav shebi'Chelalos" is when the verse prohibits one item which includes all of the items. As an example of a Lav shebi'Chelalos, Rashi mentions the prohibition of eating the Korban Pesach in any manner other than roasted. There is no Malkus for transgressing this Isur of eating the Korban in any way other than "roasted on a fire," because that Lav includes many types of ways of preparing the Korban and does not forbid any specific way of preparing the Korban. Since it is so broad, it is called a "Lav shebi'Chelalos." Similarly, Rashi says that the prohibition for a Nazir to consume any item made from grapes of the vine is a "Lav shebi'Chelalos," since it includes all grape products.
TOSFOS in Bava Metzia (115b) questions Rashi's definition of a "Lav shebi'Chelalos." The Torah forbids the eating of the Chelev (certain types of fats) of an ox, sheep, and goat. The Gemara in Kerisus (4a) teaches, according to the Rabanan, that this prohibition is a "Lav shebi'Chelalos," and therefore the transgressor receives only one set of Malkus. According to Rashi's definition of a "Lav shebi'Chelalos," the Chelev of each animal should be prohibited by a separate Lav because each animal is listed in the verse separately!
Tosfos answers this question on Rashi and says that the Isur of Chelev is different. The Torah prohibits eating the Chelev of all of these animals, and thus all types of Chelev are included in the statement that prohibits the eating of Chelev. For the prohibitions mentioned in the Mishnah here, the Torah does not command that a certain item may not be eaten and then proceed to list various types of that item. Rather, the Torah lists entirely different items which one may not eat outside of their designated area: Bikurim, Kodshei Kodashim, Kodshim Kalim, etc. Each item is entirely different from the other. Such a variation of items shows that the Lav applies to each item individually.
The MARGANISA TAVA points out that Tosfos here does not seem to agree with the answer of Tosfos in Bava Metzia. Tosfos here asks why the verse needs to mention Ma'aser again if it was mentioned already in the earlier verse. According to Rashi's understanding, this is no question; Ma'aser needs to be mentioned again in order to warrant a punishment of Malkus. The Marganisa Tava explains that Tosfos here does not agree with the answer of Tosfos in Bava Metzia. Tosfos here apparently learns that the Gemara in Kerisus and the Gemara here differ with regard to whether a Lav which specifies many types of items is called a "Lav shebi'Chelalos" or not (and the Gemara here maintains that it is not).
The ARUCH LA'NER explains that, according to Tosfos, the Gemara in Kerisus and the Gemara here do not disagree. Rather, the difference lies in the opinion of Rava. Rava maintains -- like the minority opinion -- that a "Lav shebi'Chelalos" is punishable with Malkus (see Pesachim 41a and Insights there). Since the Gemara is discussing the opinion of Rava (who follows the view of Rebbi Shimon), there is no practical consequence from the fact that the prohibitions here fall into the category of a "Lav shebi'Chelalos." (Y. MONTROSE)
2) THE READING OF "PARSHAS BIKURIM"
QUESTION: Rebbi Eliezer states that one must place the fruits of Bikurim next to the Mizbe'ach in order to fulfill the Mitzvah of Bikurim. In contrast, reading the Parshah of Bikurim, although it is a Mitzvah, is not essential to fulfilling the Mitzvah of Bikurim; if one fails to read the Parshah of Bikurim, one still fulfills the Mitzvah of Bikurim.
In a different statement, Rebbi Eliezer says that if a person separates his Bikurim before Sukos but does not bring the fruit to the Beis ha'Mikdash until after Sukos, he should leave them to rot. Apparently, this is because one cannot read the Parshah of Bikurim after Sukos. This statement implies that the reading of the Parshah is an integral part of the Mitzvah, and without it one cannot fulfill the Mitzvah of Bikurim at all.
The Gemara reconciles the two statements of Rebbi Eliezer with the principle of "Kol ha'Ra'uy l'Vilah, Ein Bilah Me'akeves Bo; v'she'Ein Ra'uy l'Vilah, Bilah Me'akeves Bo." This rule teaches that it is possible for an act which is not an integral part of a Mitzvah still to be an obstacle to the fulfillment of the Mitzvah. If part of the Mitzvah cannot apply at all in a certain case, then that component of the Mitzvah prevents the fulfillment of the entire Mitzvah. If that part can be done but just happens not to have been fulfilled, then it does not impede the fulfillment of the entire Mitzvah. This explains the statements of Rebbi Eliezer. Rebbi Eliezer maintains, as he says in his first statement, that the reading of the Parshah is not integral to the Mitzvah of bringing Bikurim. However, if a person is in a situation in which he cannot read the Parshah, such as when he delayed the bringing of the Bikurim until after Sukos, the inability to read the Parshah impedes the fulfillment of the entire Mitzvah.
This answer, however, seems to contradict the Gemara elsewhere. The Gemara in Gitin (47b) and Bava Basra (81b) states that when one sends his Bikurim to Yerushalayim with a Shali'ach who dies on the way, the owner is obligated to bring his Bikurim but he does not read the Parshah of Bikurim. This is because the Parshah is read only when the Bikurim is brought from the place of origin to Yerushalayim by the same person, as derived from the verse (Devarim 26:2).
According to the Gemara here, however, in such a case -- when the Shali'ach bringing the Bikurim dies -- the Bikurim should be left to rot, since it is a situation in which one cannot possibly read the Parshah of Bikurim. How is the Gemara here to be reconciled with the Gemara in Gitin and Bava Basra?
(a) The RITVA in Bava Basra (81b) answers that in the case of the Shali'ach, the rule of "Kol ha'Ra'uy l'Vilah" mentioned here does not apply. In that case, the owner still has the option to bring the Bikurim back to his home and then embark on a new trip to Yerushalayim. He would thereby become the sole carrier of the Bikurim and be entitled to recite the Parshah of Bikurim. Only in a case in which there is no possible way to read the Parshah of Bikurim, such as in the case of the Gemara here, does the rule of "Kol ha'Ra'uy l'Vilah" impede the fulfillment of the entire Mitzvah.
(b) TOSFOS answers based on the Yerushalmi that teaches that since the fruit was harvested originally with intent to send the Bikurim with a Shali'ach, the Parshah of Bikurim was not intended to be read in the first place. This is because the Mishnah in Bikurim states that a Shali'ach does not read the Parshah of Bikurim, since a Shali'ach cannot declare the words, "I have brought the first of the fruits of the land which You, Hash-m, have given to me" (Devarim 26:10), because the land does not belong to him. The rule of "Kol ha'Ra'uy l'Vilah" applies only when one originally could have recited the Parshah of Bikurim on bringing these fruits and then lost the opportunity because of the circumstances. In the case of the Gemara here, the person delayed bringing his Bikurim until after Sukos, rendering his Bikurim unfit. In the case in the Gemara in Gitin, the Parshah of Bikurim was never supposed to be read, and therefore the Bikurim still can be brought without reading the Parshah.
This answer, however, seems to contradict a fourth Gemara. The Gemara in Yevamos (104b) states that a mute man and woman cannot perform Chalitzah, since they cannot read their respective parts of the Parshah of Chalitzah. According to the logic of Tosfos, this should not be a problem, because there never was any expectation that they would read their parts.
The OR SAME'ACH (Hilchos Bikurim 4:13) answers this question on Tosfos. He explains that Bikurim differs from Chalitzah because there are two different references to Bikurim in the Torah. The verse in Parshas Mishpatim (Shemos 23:19) makes no mention of the requirement to read the Parshah of Bikurim. The Mechilta learns from that verse that women and converts bring Bikurim even though they cannot read the Parshah of Bikurim. The verse there apparently teaches that there are people who may bring Bikurim even though they cannot read the Parshah of Bikurim. Their situation is different from the situation of a person who could read the Parshah originally and then became unable to read it. Chalitzah, in contrast, has no such Halachah, and therefore all people who cannot read the Parshah of Chalitzah -- regardless of the reason -- are unable to perform Chalitzah.
(c) The OR SAME'ACH himself offers another answer to all of these questions. He explains that there is a difference between not having a text to read, and not having the ability to read. In the case of the Shali'ach who brings Bikurim, the Shali'ach does not read the Parshah Bikurim not because he does not have the ability to read it, but rather because he does not have any verses to read! The Parshah of Bikurim says, "I have brought the first of the fruits of the land which You, Hash-m, have given to me," and since the Shali'ach does not own the land he cannot recite these words. It is as if the Torah says that the part of the Mitzvah of Bikurim that requires reciting the Parshah does not apply to him, since there is nothing for him to read. In the case of the Gemara and in the case of Chalitzah, the people involved must read the parts that apply to them in totality. The problem is that they do not have the ability to read those parts. Their inability to read the Parshah of Bikurim is not due to the fact that it does not apply to them. Rather, in the case of bringing Bikurim after Sukos, the Parshah cannot be read because it must be read out of happiness, and after Sukos the happiness of having the first fruits has diminished. Similarly, in the case of Chalitzah, the Parshah does apply to the person, but since the person is mute he (or she) cannot read the Parshah. Accordingly, it is the inability to read that stops him from performing the Mitzvah. (Y. MONTROSE)